Citation Nr: 0923329
Decision Date: 06/19/09 Archive Date: 06/23/09
DOCKET NO. 05-37 888 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for chondromalacia of the
right knee.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
H. E. Costas, Counsel
INTRODUCTION
The appellant served on active duty from October 11, 1973, to
November 5, 1973.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a July 2004 rating decision of the
Houston, Texas, Department of Veterans Affairs (VA) Regional
Office (RO).
In September 2008, the appellant presented sworn testimony at
a videoconference hearing before the undersigned.
In November 2008, the Board remanded the matter for
additional procedural and evidentiary development.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDING OF FACT
Clear and unmistakable evidence establishes that a right knee
disorder pre-existed active duty and clear and unmistakable
evidence establishes that the pre-existing chondromalacia of
the right knee did not increase in disability beyond natural
progression during the less than one month of active service.
CONCLUSION OF LAW
Chondromalacia of the right knee both clearly and
unmistakably pre-existed service and was not aggravated
therein; and the presumption of soundness at entry is
rebutted. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002 & Supp.
2008); 38 C.F.R. § 3.304(b) (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
As provided for by the VCAA, VA has a duty to notify and
assist claimants in substantiating claims for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2008); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Proper VCAA notice is to inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide. 38 C.F.R.
§ 3.159(b)(1). The Board also notes that during the pendency
of this appeal, in March 2006, the U.S. Court of Appeals for
Veterans Claims (Court) issued a decision in the consolidated
appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). The VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those elements are:
(1) veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability.
A review of the record reveals there has been essential
compliance with the mandates of the VCAA with regard to the
issue at hand. In a letter dated in May 2004, the Veteran
was informed of the evidence that was needed to support his
claim and how VA would help him and how he could help himself
provide evidence in support of his claim. In November 2008
and January 2009, following a remand by the Board in November
2008, he was provided with types of information that would
help support a claim for service connection and he was also
informed how VA determines a disability rating and how it
determines an effective date once service connection is
assigned.
With regard to the duty to assist the Veteran, he was
accorded examinations by VA physicians in May 2006 and March
2009. Both physicians stated that they had access to and
reviewed the entire claims file and the Veteran's service
treatment records. The Veteran himself signed a statement
dated December 1, 2008, that he had no additional information
or evidence to submit in support of his appeal.
Based on the above, the Board finds that all necessary
development has been accomplished, and appellate review may
proceed without prejudice to the Veteran. See Bernard v.
Brown, 4 Vet. App. 384 (1993). VA has obtained VA treatment
records, service treatment records, and service personnel
records. The Veteran has submitted statements in support of
his claim. He was accorded comprehensive examinations by VA
in May 2006 and March 2009. Hence, no further notice or
assistance to the Veteran is required. See Dela Cruz v.
Principi, 15 Vet. App. 143 (2001).
Pertinent Legal Criteria
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303.
For the showing of chronic disease in service there is
required a combination of manifestations sufficient to
identify the disease entity and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic."
Continuity of symptomatology is required where the condition
noted during service is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R. §
3.303(b).
Service connection may also be granted for a disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
A Veteran is presumed to be in sound condition at entrance
into military service except for conditions noted on the
entrance examination. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304.
When a condition is properly found to have been preexisting,
the presumption of aggravation provides that a preexisting
injury or disease will be considered to have been aggravated
by active military, naval, or air service, where there is an
increase in disability during such service, unless there is a
specific finding that the increase in disability is due to
the natural progress of the disease. 38 U.S.C.A. § 1153,
38 C.F.R. § 3.306(a)
Aggravation may not be conceded where the disability
underwent no increase in severity during service, on the
basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during, and
subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.
Temporary or intermittent flare-ups of symptoms of a pre-
existing condition during service do not constitute
sufficient evidence to be considered aggravation in service
unless the underlying condition, as contrasted to symptoms,
is worsened. Aggravation, that is, an increase in
disability, in service is based upon a worsening of the pre-
service condition to the extent that a Veteran's average
earning capacity has been diminished. Hunt v. Derwinski, 1
Vet. App. 292, 296-97 (1991).
The Board must determine whether the evidence supports the
claim or is in relative equipoise, with the appellant
prevailing in either case, or whether the preponderance of
the evidence is against the claim, in which case service
connection must be denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
Factual Background
A review of the Veteran's service treatment records reveals
that on October 19, 1973, eight days after his induction into
service, the Veteran presented with complaints of right knee
pain. At that time he reported a one year history of right
knee problems. Physical examination revealed slight swelling
and tenderness on palpation above and below the patella. No
other abnormalities were seen on examination. He was
prescribed aspirin, an ace wrap, and a balm. The Veteran
again reported with complaints of knee pain on October 20,
1973, and on October 23, 1973. A physical profile record
dated on October 23, 1973, indicates that the Veteran was
diagnosed as having severe right patella chondromalacia and
that all training was to be suspended pending administrative
action under AR 635-200. On November 5, 1973, the Veteran
signed a statement that there had been no change in his
medical condition. The Veteran was discharged from service
on November 5, 1973.
The current claim on appeal was received in April 2004. In
support of his claim, the Veteran submitted a statement from
a VA clinical social worker dated in July 2004 indicating
that the Veteran had received medical care for his knee
injury during active service. Additionally, since his
discharge from service the Veteran has been diagnosed as
having and receiving treatment for schizophrenia for the past
two decades.
In July 2004, the RO denied entitlement to service connection
for severe chondromalacia of the right patella because there
was no evidence of record of chronicity or continuity of
treatment since discharge from service. Additionally, the
Veteran had not submitted objective evidence of worsening of
a pre-existing condition.
In May 2006, the Veteran was afforded a VA examination. The
examiner indicated that there was absolutely no documentation
in the medical records that the Veteran sustained an injury
to his right knee while undergoing processing at Fort Polk,
Louisiana. The examiner noted that the Veteran never
actually began basic training; rather, his period of service
was contained to the processing unit. There was, however,
documentation that the Veteran had a pre-existing right knee
condition prior to entry into service. The examiner
concluded that the Veteran's current right knee problem was
not due to anything that happened during service.
During a video conference hearing dated in September 2008,
the Veteran testified that he did have pre-existing right
knee condition prior to his entry into service; however, he
stated he also sustained an injury to his right knee during
service when he slipped. His right knee condition resulted
in his discharge from service and he complained of
difficulties ever since. Also, he had not sought any
treatment for his right knee problems.
In March 2009, the Veteran was afforded another VA
examination. The examiner noted that the Veteran never
started basic training; he only underwent processing during
service. Although the Veteran complained of knee pain, there
was no documentation of an injury to the right knee during
service. When the Veteran was referred for orthopedic
evaluation, it was determined that he had a pre-existing
condition and he was referred for administrative discharge
for fraudulent enlistment. A review of the post-service VA
treatment records revealed one complaint of knee pain in
November 2005. Prior to that there was no documentation of
complaints of, treatment for, or evaluation of the right
knee. The VA examiner concluded that the Veteran's pre-
existing condition, however, was not aggravated by service;
rather, it was a continuation of a pre-existing condition.
Analysis
The Board has thoroughly reviewed all the evidence in the
claims folder. Although the Board has an obligation to
provide reasons and bases supporting its decision, there is
no need to discuss in detail all the evidence submitted by
the veteran or in his behalf. See Gonzales v. West, 218 F.
3d 1378, 1380 (Fed. Cir. 2000) (the Board must review the
entire record, but does not have to discuss each piece of
evidence). The analysis below focuses on the most salient
and relevant evidence, and on what this evidence shows, or
fails to show, on the claim. The Veteran should not assume
that the Board has overlooked pieces of evidence that are not
explicitly discussed herein. See Timberlake v. Gober, 14
Vet. App. 122 (2000) (the law requires only that the Board
provide reasons for rejecting evidence favorable to the
Veteran).
The Veteran served on active duty from October 11, 1973, to
November 5, 1973.
As noted, every Veteran shall be taken to have been in sound
condition when examined, accepted, and enrolled for service,
except as to defects, infirmities, or disorders noted at the
time of the examination, acceptance, and enrollment, or where
clear and unmistakable evidence demonstrates that the injury
or disease existed before acceptance and enrollment and was
not aggravated by such service. 38 U.S.C.A. § 1111 (West
2002). Only such conditions as are recorded in examination
reports are to be considered as noted. 38 C.F.R. § 3.304(b)
(2008). In order to rebut the presumption of soundness,
there must be clear and unmistakable evidence demonstrating
that the injury or disease existed before acceptance and
enrollment and clear and unmistakable evidence that it was
not aggravated by such service. VAOPGCPREC 3-2003 (July 16,
2003), Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
As a right knee disorder was not noted upon entry, the
Veteran is presumed to have been in sound condition upon
entry to service. 38 U.S.C.A. § 1111. The standard for
rebutting the presumption of soundness requires that VA show
by clear and unmistakable evidence that the Veteran's
disability both pre-existed service and was not aggravated by
service. 38 C.F.R. § 3.304(b).
Eight days after his entry into service, the Veteran reported
for treatment with complaints of right knee pain. At that
time, he gave a one-year history of right knee problems. The
Veteran later indicated that he had received civilian
treatment for a right knee disorder prior to his entry into
service. Post-service, the Veteran has also testified that
he had a pre-existing right knee disorder. As such, the
Board finds that there is clear and unmistakable evidence
that a right knee disorder existed prior to the second period
of active service.
The remaining question is whether the pre-existing right knee
disorder was aggravated by service. The burden is on VA to
rebut by clear and unmistakable evidence that the pre-
existing injury was not aggravated by service, which may be
established by evidence that any increase in disability was
due to the natural progress of the pre-existing condition.
On the question of medical causation, competent medical
evidence is required to substantiate the claim. Competent
medical evidence means evidence provided by a person who is
qualified through education, training, or experience to offer
a medical opinion. 38 C.F.R. § 3.159. As a lay person, the
Veteran is not qualified through education, training, and
expertise to offer an opinion on medical causation. For this
reason, the Board rejects the Veteran's statements and
testimony that the current right knee problems were
aggravated by service. Jandreau v. Nicholson, 492 F.3d 1372
(Fed. Cir. 2007).
On the question of medical causation, there is no competent
medical evidence in favor of the claim. Rather, there are
two VA medical opinions of record, dated in May 2006 and
March 2009, that the Veteran's right knee disorder is not
attributable in anyway to service. The May 2006 examiner
opined that the Veteran's current right knee problem was not
due to anything that happened during service. The March 2009
examiner determined that the Veteran's pre-existing
condition, was not aggravated by service; rather, it was a
natural progression of a pre-existing condition. These
opinions are persuasive. In conclusion, the Board finds that
the VA medical opinions are clear and unmistakable evidence
that there no increase during service of the Veteran's pre-
existing right knee disorder other than natural progress, and
the Veteran is not entitled to service connection for
chondromalacia of the right knee. 38 U.S.C.A. §§ 1110, 1111;
Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
ORDER
Service connection for chondromalacia of the right knee is
denied.
____________________________________________
ROBERT E. O'BRIEN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs